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A RECENT COURT CASE MAKES CLEAR, DEFENSE STRUCTURED SETTLEMENT BROKERS HAVE NO FIDUCIARY RESPONSIBILITY TO PLAINTIFFS. SO WHY WOULD ANY TRIAL LAWYER USE A DEFENSE BROKER NOW?

In this weeks video commentary Mark Wahlstrom takes a deeper look at the issues being revealed in last weeks decision in USDC of Oregon. A decision in which defense brokers argued, and the court agreed, that no fiduciary relationship exists between a defense structured settlement broker and the injured plaintiff who relies upon their advice regarding the selection of the life company that funds their injury settlement.

Knowing this is the position of the brokers and courts, the question Mark asks is why would any trial lawyer settle a case using a structured settlement where they did not engage a plaintiff broker who would have a clear fiduciary responsibility to the injured party? Have trial lawyers been so seduced by years of financial contributions to trial lawyer associations from defense structured settlement firms, or has it just become routine to deal with one broker and to not bother with engaging your own expert?

Mark also discusses the increasing outside scrutiny of the process by which political figures in New York decided to liquidate ELNY and why that process is still shrouded in secrecy two years after it occurred. He believe it is time for trial lawyers to stop passively taking at face value the defense industry narrative on how structured settlements are used, sold and funded when it comes to assisting your injured clients. Trial lawyers have the right to engage experts, create Qualified Settlement Funds and control the process by which the financial settlement decisions are made for you and your clients, so the question is why aren't they doing it?

In a decision dated 12/5.14 in US District of Oregon, in the case of Marie Westrope and Reggie Kelly v Ringler Associates Inc, Paul Hoffman, and DOES 1-100, for the first time in my professional life I saw a court dismiss the arguments of defense brokers regarding no statutory or fiduciary duty of care to plaintiffs and instead determined, that under Oregon law, that defense structured settlement brokers owed plaintiffs a special duty of care under a third party beneficiary theory.

A full copy of the the decision is available here, or you can search under Case No. 3:14-cv-00604-ST, USDC, Oregon, Portland Division, Magistrate Judge Janice M. Stewart.

What does this all mean for plaintiffs in the Executive Life of New York litigation which seeks' class status in 26 states, where it is alleged that Ringler Associates brokers sold ELNY contracts using qualified assignments which exposed plaintiffs to excessive financial risk and which relieved defendants of liability to fund payments in the event of an insolvency, which in fact is what occurred in 2013.

What is stunning about this to me is that for the first time in decades we had a major annuity brokerage firm arguing passionately that when they are working on a structured settlement, they are in fact working specifically on behalf of the defendants and "that defendants (Ringler) owed no fiduciary duty to plaintiffs as their broker", a finding the court agreed with factually and which should be a reminder to trial lawyers all over the country that just because a defense broker says he is working for you, when pressed in court they will vehemently deny that they have ANY duty to you or your injured client what so ever.

Instead of fiduciary standards of care, the Court this time found that Oregon law provided a level of care responsibility for the broker to be held, as the annuity, while purchased and funded by the defendants, was an " annuity intended to benefit plaintiffs and the broker signed both applications". ( emphasis added by the court). This status as benefits intended for plaintiffs thus demanded a heightened duty of care from defendants and to exercise reasonable care in the procuring of structures settlement annuities. As such the negligence claim asserted by the plaintiffs survived under Oregon law due to their status as third party beneficiaries. Again, what this means is that a standard of care was recognized by the court in this decision that prevented the standard industry defense that their client is the defendant and they have no duty to the plaintiff, an argument plaintiff experts have been pointing out to trial lawyers for decades as to why they must engage their own experts to protect their clients in a structured settlement negotiation.

Not all the news was bad for the defense as the court found that Ringler did NOT have a continuing duty to inform plaintiffs over time of ELNY's declining financial condition, as their was no way the contracts could be surrendered or replaced after issuance. However, I do find it interesting that no one raised the issue that a robust secondary market for the sale of ELNY contracts existed for much of the later part of the 1990's and early 2000's based on the fact it was protected income under the supervision of the NYLB at that time. Possibly that will be pled again at a future date, or the more likely the plain language prohibiting surrender and commutation, will be sufficient to win this argument every time for defense brokers.

Also, another clear win was on the statutory issue of whether or not brokers have liability for contracts written on behalf of beneficiaries in states where Executive Life of NY was not approved for sale. The court found clearly that was a violation of statutory law and allowed it to go forward as part of the case and complaint as well.

I will cover this case again later this week in a video commentary, but suffice it to say that ELNY class action litigation was not killed in motions to dismiss and now will move to a district judge, with objections due Monday, December 22, 2014, and with responses due with in 14 days after that.

The bottom line here is that the mythology that defense brokers working for defendants will be able to safely hide behind the "no fiduciary duty" argument in perpetuity, has for the first time been exposed. Whether the magistrate judges ruling and thinking on this carries forward to US District Court and to trial remains to be seen. However, I will state again the key point for trial lawyers and that is you need to get your own advisor and stop using defense brokers if you want to make sure that if something like this ever occurs again, that they don't immediately dive for cover behind the kind of arguments which were made in this case so far.

Our profession has come a long, long way since the early to mid 1980's when these contracts were sold, but one area we need to further bolster is greater clarity on who actually has a duty to protect the future of the plaintiff as it is abundantly clear that defense broker argue that they have no such duty in cases such as this.

If you are a resident of the State of Alabama and are considering selling your structured settlement income for a cash lump sum you need to take the time to read over and make an attempt to understand the Alabama Structured Settlement Protection Act. This legislation was put into place in 2001 and outlines your rights, the process and potential legal issues you might face as you work through this important decision.

Beyond just reading the law however, you also need to recognize that one of the biggest issues in the transfer of annuity payments is the selection of the company you work with on this vitally important transaction. Often times people will simply call an 800 number off a TV or radio ad, or respond to a direct mail solicitation, with out any idea whether or not they are getting the right price or working with someone familiar with Alabama law and the nuances of the Alabama Structured Settlement Protection Act. This directory is designed to work with a wide range of professionals, from transfer attorneys, to purchasers of cash flows, Independent Professional Advisors and structured settlement experts.

If you are serious about finding someone in Alabama, or at least who is familiar with the transfer law and structured settlement law in the state, please use our contact form listed here and we will be happy to refer an expert for you to speak with. This is an important and often lifetime financial decision which requires careful analysis and pricing to make sure you are getting the best possible price.

Mark Wahlstrom is the President of Wahlstrom & Associates and Founder of The Legal Broadcast Network. His weekly commentary on the law, finance and the structured settlement profession can be viewed or watched on The Settlement Channel and The Legal Broadcast Network.